No. 05-406
IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 329

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IN RE THE PETITION OF BILLINGS HIGH SCHOOL DISTRICT NO. 2, YELLOWSTONE COUNTY, Petitioner and Respondent,

v. THE BILLINGS GAZETTE, Respondent and Cross-Appellant, and
BILLINGS EDUCATION ASSOCI ATION, D.M. and P.G., Respondents and Appellants.

_____________________________________

APPEAL FROM: District Court of th e Thirteenth Judicial District, In and for the County of Yellowstone, Cause No. DV-04-1030, The Honorable Susan P. Watters, Presiding Judge.

COUNSEL OF RECORD: For Appellants: Richard A. Larson, Harlen, Chroni ster, Parish & Larson, P.C., Helena, Montana For Cross-Appellant The Billings Gazette: Martha Sheehy, Sheehy Law Firm, Billings, MontanaFor Respondent Billings Hi gh School District No. 2: Laurence R. Martin and Mary E. Dun can, Felt, Martin, Frazier, Jacobs & Rapkoch, P.C., Billings, Montana

_____________________________________ Submitted on Briefs: March 22, 2006 Decided: December 12, 2006

Filed:

____________________________________________ Clerk

23 Chief Justice Karla M. Gray delivere d the Opinion of the Court. ¶1 The Thirteenth Judicial District Court, Yellowstone County , directed Billings High School District No. 2 (School District ) to release certain documents related to teachers D.M. and P.G. to the Billings Gaze tte (Gazette) pursuant to Montana’s statutory and constitutional “right to know” provisions. The District Court also denied the Gazette’s request for attorney fees. ¶2 The Billings Education Association (B EA), D.M. and P.G. appeal from the District Court’s underlying determinations that D.M. and P.G. have no reasonable expectation of privacy in their conduct as public employees and, even if they did have a reasonable expectation of privacy, that priv acy expectation did not clearly exceed the merits of public disclosure. They also ap peal from the District Court’s ultimate order requiring the School District to release the documents to the Gazette. We affirm. ¶3 The Gazette cross-appeals th e issue of whether the District Court abused its discretion in denying its request for attorney fees. We affirm. BACKGROUND ¶4 On September 22, 2004, the Gazette sent th e School District a written request for copies of the employment records of two Billings high school teac hers, D.M. and P.G., including records of any investigation and di sciplinary action taken with regard to an incident which had occurred invo lving the two teachers. The Gazette relied on Article II, Section 9 of the Montana Constitution, which stat es that “[n]o person shall be deprived of the right to examine documents . . . except in cases in which the demand of individual4 privacy clearly exceeds the meri ts of public disclosure.” ¶5 The School District notified D.M., P.G., and the BEA of the Gazette’s request. The BEA, on behalf of D.M. and P.G., responded by lette r dated September 23, 2004, that the teachers asserted privacy interests in the requested do cuments. It further stated the teachers did not waive their privacy inte rests in—or otherwise authorize the release of—the documents except as to information about their dates of hire, salary history, and teaching and coaching assignments. ¶6 On October 1, 2004, the School District filed a declaratory action requesting the District Court to review the relevant documents in camera and declare the parties’ rights by determining which documents, if any, shoul d be released to the Gazette pursuant to the Montana Constitution and law. The petit ion named the Gazette, the BEA, D.M. and P.G. as respondents. On Octo ber 12, 2004, the School Distri ct released documents to the Gazette relating to the teachers’ hire date s, salary history, teaching and coaching assignments, and other documents not subjec t to the asserted pr ivacy claims. On November 16, 2004, the School District delivered to the District Court for in camera inspection both the documents which had been released to the Gazette and those which had been withheld from the Gazette because of privacy concerns. ¶7 After full briefing and oral argument by the parties, the District Court determined that, as public school teachers, D.M. and P.G. occupy positions of p ublic trust and their conduct during the incident underlying the inve stigative and disciplinary information at issue reflected directly upon their ability to perform their duties. Consequently, the5 District Court concluded that D.M. and P.G. did not have a reas onable expectation of privacy in the investigation of their conduct as public employees. The court further concluded that, even if the teachers had a reasonable expe ctation of privacy in the information, that expectation was outweighed by the merits of public disclosure. On that basis, the District Court ordered the School District to release tw elve entire documents and one document with a specif ied redaction to the Gazette. Observing that the School District had not yet provided additional documents for its in camera review, the court declined to rule with regard to those documents and rese rved ruling on the Gazette’s request for costs and attorney fees. ¶8 The BEA, D.M and P.G. appe aled the District Court’s order and moved for a stay of proceedings pendi ng the appeal. The District Court granted the stay. Following filing of the notice of appeal, the Sc hool District located additiona l documents relevant to the Gazette’s original request and delivered t hose documents to the District Court for in

camera review as they became availa ble. On February 9, 2005 , we dismissed the original appeal as interlocut ory and premature. ¶9 On March 15, 2005, the District Court en tered an order dissolving the stay of proceedings, amending its prior order regarding the disclosure of documents, ordering the School District to release a ll designated documents to the Gazette by the following day, and setting a briefing schedule on the attorney fees issue. The School District delivered the documents as ordered and the District Court subsequently denied the Gazette’s request for attorney fees. As set forth above , the BEA, D.M. and P.G. (collectively, the6 Teachers) appeal and the Gazette cross-appeals. DISCUSSION ¶10 Did the District Court err in determining that D.M. and P.G. have no reasonable expectation of privacy in their conduct as pu blic employees and in ordering the School District to release documents to the Gazette? ¶11 The Teachers contend the District Cour t erred in concluding they have no reasonable expectation of privacy in the documents at issue and, as a result, also erred in ordering the School District to release th e documents to the Gazette. They request reversal of the order requiring release. Th e Gazette contends, as a threshold matter, that the release of the disputed documents to—a nd dissemination of the information to the public by—the Gazette renders this issue moot. ¶12 Mootness is a threshold issue which must be addressed prior to resolving an underlying dispute. Shamrock Motors, Inc. v. Ford Motor Co. , 1999 MT 21, ¶ 17, 293 Mont. 188, ¶ 17, 974 P.2d 1150, ¶ 17. An issue “is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy.” Shamrock Motors , ¶ 19. Stated differently, an issue is moot when a court cannot grant effective relief or restore the par ties to their original position. Shamrock Motors , ¶ 19. ¶13 Here, the underlying dispute in the Distri ct Court was whether the School District should release various documents to the Gazette under Article II, Section 9 of the Montana Constitution, commonly referred to as the “right to know” provision. The School District released these documents to the Gazette pursuant to the District Court’s order. We could reverse the District Court’s legal conclusions regarding the Teachers’7 reasonable expectation of privacy and the “ri ght to know” determination if we were to hold the court had erred, and we could require the return or destruc tion of the copies of the documents released to th e Gazette. We could not, ho wever, negate the Gazette’s knowledge of the contents or retrieve any public dissemination made of the information in the documents. Consequen tly, we cannot restore the partie s to their original positions. As the District Court aptly stated in its or der granting a stay of proceedings pending the first appeal in this matter, “[o]nce the bell is rung, it cannot be un-rung.” A decision by this Court in the Teachers’ favor would not—indeed, could not—grant them effective relief. ¶14 Implicitly conceding that the issue is moot, the Teachers rely on Common Cause v. Statutory Committee , 263 Mont. 324, 868 P.2d 604 (1 994), in arguing that we should address the merits of this issue under the exception to the mootness doctrine for constitutional questions which ar e capable of recurring but which could evade effective review. This exception recognizes that the am ount of time inherent in the litigation process renders it nearly impossible in some cases for a final judicial decision to be reached before the case is rendered moot. In such circumstances, because application of the mootness doctrine would effectively deny the remedy of appeal, a court will agree to issue a decision even after the actual contr oversy has been resolved. Grabow v. Montana High School Ass’n , 2000 MT 159, ¶ 15, 30 0 Mont. 227, ¶ 15, 3 P.3d 650, ¶ 15 (citing Common Cause , 263 Mont. at 328, 868 P.2d at 606-07). A party seeking to invoke the “capable of repetiti on, yet evading review ” exception to the mootness doctrine bears the burden of estab lishing both that the challenged action is too8 short in duration to be litigated fully before its cessation an d that there is a reasonable expectation that the same comp laining party would be subject to the same action again. Skinner v. Lewis and Clark , 1999 MT 106, ¶ 18, 294 Mont. 310, ¶ 18, 980 P.2d 1049, ¶
18. ¶15 We recently discussed and clarified applic ation of the “capable of repetition, yet evading review” exception to the mootness doctrine in Havre Daily News v. City of
Havre , 2006 MT 215, 333 Mont. 3 31, 142 P.3d 864. We adopted this exception from federal jurisprudence, which has established that the exception “is properly confined to situations where the challenged conduct invariably ceases before courts can fully adjudicate the matter.” Havre Daily News , ¶ 33 (citations omitted). In this regard, the Teachers assert that, alth ough the proceedings in this case were not particularly short in duration, it is likely that future cases i nvolving disclosure of documents relating to teacher disciplinary actions will be short in light of the Distri ct Court’s determination that D.M. and P.G. have no reasonable expecta tion of privacy in th eir conduct as public employees. This assertion is speculative and fails to establish that proceedings involving the release of documents relati ng to teacher disciplinary acti ons are inherently of limited duration. ¶16 The second prong of the “capable of re petition, yet evading review” exception requires the party asserting the exception to establish that there is a reasonable expectation that the same comp laining party would be subject to the same action again. The Teachers contend that “[t] here is a reasonable expectati on that [the School District]9 (and others throughout the state), the BEA (a nd other labor organiza tions throughout the state), and a host of individual teachers are subject to being drawn into actions concerning fundamental privacy rights.” Give n the inherent tension between Montana’s constitutional right to know and right of individual privacy, this contention can hardly be disputed. However, the Teachers’ mere asser tion that other school districts, other labor organizations and other indivi dual teachers may become involved in “right to know” litigation over access to docume nts does not establish that “the same complaining party”—namely, these Teachers —can reasonably expect to be subject to a similar action in the future. ¶17 More importantly, the determination of whether the public has the right to examine particular documents in the face of asserted individual pr ivacy rights entails a fact-specific inquiry to ascertain whether the individual involved has a subjective or actual expectation of privacy which society is willing to recognize as reasonable and, if so, whether that expectation of privacy clearly exceeds the merits of public disclosure of the documents under the circumstances. See Havre Daily News , ¶ 38; Jefferson County v. Montana Standard , 2003 MT 304, ¶¶ 14-18, 318 Mont . 173, ¶¶ 14-18, 79 P.3d 805, ¶¶ 14-18. Because this inquiry must be undertak en within the context of the facts of each case, it cannot be said that there is a reasonable expectation that the same action— comprising the same factua l scenario—will arise again. ¶18 Finally, we have stated that “[a] party may not claim an exception to the mootness doctrine where the case has become moot through that party’s own failure to seek a stay10 of the judgment.” Turner v. Mountain Engineering and Const., Inc. , 276 Mont. 55, 60, 915 P.2d 799, 803 (1 996). We adopted this principle from Gates v. Deukmejian , 987 F.2d 1392 (9 th Cir. 1993), wherein the Ninth Circuit C ourt of Appeals reaffirmed its prior cases holding that a party may not profit fro m the “capable of repe tition yet evading review” exception to mootness, where through hi s own failure to seek and obtain a stay he has prevented an appellate court from reviewing the trial court’s decision. The exception was designed to apply to situations where the type of injury involved inhere ntly precludes judicial re view, not to situations where the failure of parties to take actions has precluded review as a practical matter.
Gates , 987 F.2d at 1408-09 (citation omitted). Th us, where a party has failed to obtain— or at least attempt to obtain—a stay of pr oceedings pending appellate review, that party may not take advantage of th e “capable of repetition, yet evading review” exception to the mootness doctrine. Gates , 987 F.2d at 1409. ¶19 Upon remand from our dismi ssal of the first appeal in this matter, the Gazette moved to dissolve the District Court’s earlier stay of proceedings pending appeal on the basis there no longer was an appeal pending. At a hearing on the motion, counsel for the Teachers conceded there was no legal basis for continuing the stay pending appeal. Counsel for the Teachers further observed that , if the District Court ordered the School District to release the documen ts the following day, the Teac hers still would not be able to request a stay because the or der would not be a fi nal order with the a ttorney fees issue still outstanding. This observation, while not technically incorrect, also was not entirely

accurate.11 ¶20 Pursuant to M. R. Civ. P. 54(b), the A ppellants could have requested—under such a circumstance—that the District Court designat e its order for release of the documents as a final order for purposes of appeal, notwithsta nding the unresolved atto rney fees issue. If successful, the Teacher s then could ha ve requested a stay of that judgment until all claims in the case were finally determined. See M. R. Civ. P. 62(h). Alternatively, having obtained a final judgment as to that cl aim, they could have appealed the District Court’s order to this Court and requested the Di strict Court to grant a stay pursuant to M. R. App. P. 7. The Teachers ma de no attempt to preserve the status quo pending appellate review of the issues they raise in this appeal. ¶21 We conclude that, because the Teachers fa iled to utilize procedures to preserve their ability to appeal 1) the District Court’s determinati ons that D.M. an d P.G. have no reasonable expectation of privacy in their con duct as public employees and—even if they did have a reasonable expecta tion of privacy—the privacy expectation did not clearly exceed the merits of public di sclosure, and 2) the court’s u ltimate order regarding release of the documents, they cannot avail themselves of the “capable of repetition, yet evading review” exception to the mootness doctrine. Therefore, because these issues have been rendered moot by the School Di strict’s release of the docume nts, we decline to address the merits of the issues. ¶22 Did the District Court abuse its discretion in denying the Gazette’s request for attorney fees? ¶23 The determination of whether to award a party attorney fees is a discretionary function of a district court and will not be overturned absent an abuse of that discretion.12 Pengra v. State , 2000 MT 291, ¶¶ 24 and 27, 302 M ont. 276, ¶¶ 24 and 27, 14 P.3d 499, ¶¶ 24 and 27. An abuse of di scretion occurs when the trial court acts arbitrarily without employment of conscien tious judgment or exceeds the b ounds of reasoning resulting in substantial injustice. Gaustad v. City of Columbus , 272 Mont. 486, 488, 901 P.2d 565, 567 (1995). Furthermore, we w ill not substitute our judgment fo r that of the district court unless the court clearly abused its discretion. Gaustad , 272 Mont. at 488, 901 P.2d at 567. ¶24 The Gazette requested the District Court to award it attorney fees as the prevailing party in the School District’s declaratory j udgment action. The Gazette contended it was entitled to attorney fees unde r §§ 2-3-221 and 27-8-313, MC A. Section 2-3-221, MCA, provides that “[a] plaintiff who prevails in an action brought in district court to enforce his rights under Article II, section 9, of the Montana constitution may be awarded his costs and reasonable attorneys’ fees.” Unde r § 27-8-313, MCA, supplemental relief for a party in a declaratory judgment action “may be granted whenever necessary or proper.” We have held that this statute provides discre tionary authority for a district court to award attorney fees in a declar atory judgment action. Trustees of Indiana University v. Buxbaum , 2003 MT 97, ¶ 46, 315 Mont. 210, ¶ 46, 69 P.3d 663, ¶ 46. After reviewing the parties’ briefs, the District Court denied the Gazette’s request fo r attorney fees. The Gazette contends that the court ab used its discretion in doing so. ¶25 The Gazette asserts that an award of at torney fees under th e above-referenced statutes is appropriate because it clearly is the preva iling party in this matter and has13 performed a service to Montan a citizens by enforcing the public’s constitutional right to know. In that regard, it relies on Associated Press, Inc. v. Department of Revenue , 2000 MT 160, ¶ 43, 300 M ont. 233, ¶ 43, 4 P.3d 5, ¶ 43, fo r the proposition that, where an entity performs a public serv ice by enforcing a portion of the Montana Constitution which otherwise would be violated, the cost of the litigation should be spread among the beneficiaries. ¶26 The Gazette also asserts that an award of attorney fees is appropriate because the School District needlessly delayed resolution of the action by failing to timely disclose relevant documents to the District Court for its in camera inspection. Finally, the Gazette asserts the School District provided the disputed documents to a third party who subsequently revealed the contents of the documents to the public at a school board meeting while this proceeding was still pending in the District Court. The Gazette contends that the School District’s disclosu re of the documents to a third party of its choice for disclosure to the public, while forcing the Gaze tte to undergo litigation to obtain those same documents, cannot be justified. ¶27 In response, the School District argues that Associated Press, Inc. is distinguishable from the presen t case and, therefore, does not support an award of attorney fees to the Gazette. We agree. In that case, several media entities brought an action for a declaratory judgment and writ of mandate, requesting the district court to determine that a Department of Revenue (Department) regulation was unconstitutional because it violated the Article II, Section 9 “right to know” provis ion and to order the14 Department to release certain documents. Associated Press, Inc. , ¶ 10. The district court determined the regulation was constitutional and ruled in favor of the Department. The media entities appealed. Associated Press, Inc. , ¶ 19. On appeal, we reversed the district court and held that the Department re gulation was facially unconstitutional. Associated Press, Inc. , ¶ 28. We further determined that th e media entities were entitled to attorney fees pursuant to § 2-3-221, MC A, because they “performed a service for th e citizens of the State by enforcing a porti on of our Constitution that wo uld otherwise be violated. Due to the public benefits ga ined by Appellants’ efforts, the cost of the litigation should be spread among its beneficiaries.” Associated Press, Inc. , ¶ 43. ¶28 In Associated Press, Inc. , the media entities initiated the court action to enforce the constitutional right to know guar anteed to all Montanans. In contrast, the present case was initiated by the School District in an e ffort to have the Dist rict Court balance the competing rights of the Gazette and the Teach ers. In doing so, the School District recognized its obligations pur suant to the constitutional right to know as well as its employees’ asserted individual privacy ri ghts, and took a reas onable approach in presenting the matter to a court to resolve. Thus, Associated Press, Inc. is distinguishable from the situation here and the Gazette’s reliance on th at case is misplaced. ¶29 The School District also argues that § 2-3-221, MCA, does not authorize an attorney fees award in this ca se because the Gazette is not a prevailing “plaintiff” in an action to enforce its rights under Montana’s constitutional “right to know” provision. Again, we agree. Section 2-3-221, MCA, provides that a district court may award15 attorney fees to a “plaintiff who prevails” in an action to enforce rights under Article II, Section 9 of the Mont ana Constitution. Here, the Gazette was not a plaintiff attempting to enforce rights under the “rig ht to know” provision. Rath er, it was the School District which petitioned the District C ourt to balance the competing constitutional rights asserted by the Gazette and the Teachers. In interpre ting statutes, we must simply ascertain and declare the terms of the statute, without inserting language whic h has been omitted or omitting language which has been inserted. Section 1-2-101, MCA. By its plain language, § 2-3-221, MCA, authorizes an awar d of attorney fees onl y to a “plaintiff who prevails” in an action under Artic le II, Section 9. The Gazette is not such a plaintiff and, as a result, cannot be awar ded attorney fees pursua nt to § 2-3-221, MCA. ¶30 Finally, the School District argues that the District Court did not abuse its discretion in denying the Gazette attorney fees pur suant to § 27-8-313, MCA, because the School District was justified in bringing its declaratory judgment action and should not be penalized for its efforts to balance the co mpeting interests of the parties involved by being forced to pay attorney fees. As stated above, we have held that a district court “may” award attorney fees pursu ant to § 27-8-313, MCA. Thus , the statute is permissive and does not require the District Court to awar d attorney fees. In other words, the issue remains a discretionary determination by the tria l court. We observe that, while a district court’s denial of a motion for attorney fees without a statement of its rationale for doing so is itself an abuse of discretion ( see Yellowstone County v. Billings Gazette , 2006 MT 218, ¶ 30, 333 Mont. 390, ¶ 30, 143 P.3d 135, ¶ 30), here the District Court’s order16 discusses the parties’ respective positions and sets forth the court’s reasoning for denying the Gazette’s motion. ¶31 As stated above, the Gazette contends th e District Court abused its discretion in denying the Gazette’s motion for attorney fees . As part of its argument, the Gazette observes that the attorney fees statutes on which it relies do not provide criteria for a district court to apply in determining whethe r to award attorney f ees to a party. The Gazette sets forth seven factors which it urge s this Court to adopt as standards which district courts must address in determin ing whether to award attorney fees in constitutional right to know cases in order to “avoid arbitrary decisions, to lend consistency and fairness to awards, and to accomplish the purpose of the statute.” ¶32 We decline to adopt the Ga zette’s proffered guidelines as mandatory factors which district courts must consider in cases of this t ype. As we stated at the outset of this issue, an abuse of discretion occurs when the tria l court acts arbitrarily without employment of conscientious judgment or exceeds the bound s of reasoning resulting in substantial injustice. Gaustad , 272 Mont. at 488, 901 P.2d at 567. In exercising discretion, district courts may consider any factor which the parties offer or th e court deems appropriate to consider—including those suggested by th e Gazette—in determini ng whether to award attorney fees in cases such as these under §§ 2-3-221 and 27-8-313, MCA. Indeed, the Gazette’s arguments to the District Court in support of its attorney fees motion included most, if not all, of the factors it urges us to adopt and the court presumably considered those arguments in its order denying the motion. It is not this Court’s place to substitute17 our judgment for that of the district court in exercising its discretion. Gaustad , 272 Mont. at 488, 901 P.2d at 567. For this Court to ma ndate factors trial courts must consider in exercising their discretion would be a serious intrusion into th e province of those courts. ¶33 The Gazette offers no case law in support of its argument that the District Court’s denial of attorney fees was an abuse of di scretion. The School District, however, relies

on Pengra for its argument that it should not be pe nalized for its efforts to have a court balance the competing constitutio nal interests of the Gazette and the Teachers by being forced to pay attorney fees. We agree that the facts in Pengra are substantially similar to the present case and the case supports the Dist rict Court’s denial of the Gazette’s motion for attorney fees. ¶34 The plaintiff in Pengra brought a negligence action against the State of Montana (State). The parties settled the case prior to trial and the plaintiff requested that the district court seal the settlement agreement. Various media entities in tervened in the case and argued against the motion to seal based on the public’s constitutional and statutory right to know. Pengra , ¶¶ 1 and 5. One of the media entities, Montana Law Week, requested an award of attorney fees pursuant to § 2-3-221, MCA. The district court denied the plaintiff’s motion to seal the se ttlement agreement and also denied Montana Law Week’s request for attorney fees. The pl aintiff appealed the court’s refusal to seal the settlement agreement and Mont ana Law Week cross-appealed the attorney fees issue. Pengra , ¶ 6.18 ¶35 In addressing the attorney fees issue, we observed that, a lthough Montana Law Week had prevailed in its po sition regarding the public’s right to know, the State had never opposed that position. Rather, it was the plaintiff who disputed the public’s right to know based on an assertion of a privacy interest in the se ttlement agreement. The State had not taken a position on either side of the issue. Pengra , ¶ 26. Thus, the State was faced with a dilemma when Pe ngra filed his motion to seal the settlement: If it had disclosed the settle ment before the hearing and Pengra had later established a right to privacy, the State c ould have been liable for damages for violating that right. In addition, on and after the date on which the settlement was submitted for the Di strict Court’s approval, the court itself treated the agreement as temporar ily sealed. Disclosure after that time would have exposed the State to a claim that it was in contempt of court. Pengra , ¶ 26. In light of the State’s ne utral position in the face of competing constitutional interests, we concluded that the district court did not abuse its discretion in denying Montana Law Week’s request that the State pay its attorney fees. Pengra , ¶ 27. ¶36 In the present case, the School District is in a position similar to that of the State in Pengra . The School District was presented w ith the Gazette’s re quest for documents pursuant to the public’s constitutional right to know. On the othe r hand, the School District also was presented with the Teache rs’ assertion of their constitutional right to privacy in those documents. Had the School Di strict simply releas ed the documents to the Gazette upon request, it may have been subject to a lawsuit by the Teachers for violating their privacy rights. Had the Scho ol District flatly refused to release the documents to the Gazette, it may have faced a lawsuit by the Gaze tte to enforce the public’s right to know. Inst ead, in an effort to protect these competing interests, the19 School District filed its declaratory judgment action and provided the District Court with the disputed documents so as to allow the court to bala nce the competing constitutional interests in light of the facts of the case. We conclude under thes e circumstances, as we did in Pengra , that seeking a judicial determina tion via constitutiona l balancing should not automatically subject the School District to paying an award of attorney fees. ¶37 In its order denying the Gazette’s request for attorney fees, the District Court stated its rationale as follows: The Court finds that the Gazette is not entitled to attorney’s fees . . . for four reasons. First, [the School Dist rict’s] Petition was justified because of the competing interests of the public’s right to know and the teachers’ individual privacy rights and the issue of teachers’ privacy rights in relation to Montana’s “right to know” laws had yet to be determined by the Montana Supreme Court. Second, any delay caused by [the School District] is not sufficient to justify an award of attorney’s fees and costs. Third, there is no evidence to suggest that [the School District] knowingly released information contained in the subject documents to the media when it allowed an investigator access to th e documents. Finally, . . . [the School District] was trying to balance the comp eting interests of the privacy rights of the teachers and the citizens’ right to know. As such , regardless of the outcome of the Petition, [the School District] is viewed as nothing more than a neutral party seeking guidance and can in no way be considered the “loser” in this action. . . . The Gaze tte has not convinced the Court that attorney’s fees and costs are approp riate. [The School District] was justified in bringing the action, ther e is no evidence of wrongdoing by [the School District] and [the School District] cannot be viewed as having lost the action. ¶38 The District Court weighed the parties’ respective positions on the issue of attorney fees and reached a measured determination on whether such an award was appropriate and necessary under the circumstan ces. We conclude that, in doing so, the District Court employed its conscientious judgment and did not exceed the bounds of20 reasoning resulting in substantial injustice. Under such circumstances, it is not this Court’s place to substitute its judgment for that of the District Court. We hold, therefore, that the District Court did not abuse its di scretion in denying the Gazette’s request for attorney fees. ¶39 Affirmed.
/S/ KARLA M. GRAY

We Concur: /S/ W. WILLIAM LEAPHART /S/ JIM RICE

Justice Brian Morris concurs. ¶40 I concur in the Court’s determination that the Teachers’ claim of a reasonable expectation of privacy in the documents at i ssue is moot in light of the fact that the District Court ordered the School District to turn over the documents and the School District complied. I generally concur with the Court’s determination that the District Court did not abuse its discretio n in denying the Gazette’s re quest for attorney fees. I write separately, however, to emphasize my view that a governmental entity cannot immunize itself from potential li ability for attorney fees pur suant to § 2-3-221, MCA, simply by filing a declaratory judgment action. ¶41 The Court reasons that the School Distri ct filed a declaratory judgment action and therefore the Gazette was not the “plaintiff” in this matter. Supra ¶ 29. As a result, the21 Court rejects any effort by the Gazette to clai m its attorney fees pu rsuant to § 2-3-221, MCA, on the ground that the stat ute provides that a district court may award attorney fees to a “plaintiff who prevails.” Supra ¶ 29; see also Yellowstone County v. Billings Gazette , 2006 MT 218, ¶ 67, 333 Mont. 390, ¶ 67, 143 P.3d 135, ¶ 67 (Leaphart, J., concurring in part and disse nting in part). I disagree. ¶42 The Court’s interpretation of § 2-3-221, MCA, will hinde r the public’s right to know established pursuant to Article II, Sec tion 9 of the Montana Constitution. More importantly, the Court’s interpretation of § 2-3-221, MCA, will have the unintended effect of encouraging, rather than discouraging, litigation surrounding these requests. In order to ensure a chance at collecting its atto rney fees, a media organization, or private person for that matter, first must preserve their rights by initiating litigation before requesting the public documents. To ask first and litigate later runs the risk of having the public entity file a preemptive declarator y judgment action to immunize itself from any claim of attorney fees pursuant to § 2-3-221, MCA. ¶43 I recognize that the statute’s plain language refers to “plaintiff who prevails.” Section 2-3-221, MCA. I also recognize, ho wever, that we have deviated slightly from a statute’s plain language in or der to uphold the Legislature’s intent. For example, we interposed a “frivolous, unreasonable, or with out foundation” requirement on a plaintiff’s claim in reversing an award of attorney fees to a prev ailing defendant in an action brought pursuant to the Mo ntana Consumer Protection Act, § 30-14-133(3), MCA. Tripp v. Jeld-Wen, Inc. , 2005 MT 121, ¶¶ 35-37 , 327 Mont. 146, ¶¶ 35 -37, 112 P.3d 1018, ¶¶22 35-37. Similarly in State v. McGowan , 2006 MT 163, 332 Mont. 490, 139 P.3d 841, we upheld a conviction under § 61-8-406, MCA, Montana's DUI Per Se statute, where the officer administered a field sobriety test a pproximately fifty minutes after the officer had first stopped the defendant. We interprete d the statute’s plain language of “while driving” to encompass “a reasonable time after the alleged ac t” in upholding the conviction. McGowan , ¶ 17. Likewise I would inte rpret more broadly the phrase “plaintiff who prevails” under § 2-3-221, MCA, to encompass defendants who prevail in preemptive declaratory judgment actions of the variety at issue here. This interpretation would comport with the Legislature’s intent of supporting a party who seeks to enforce our “constitutional right to know” under Article II, Section 9 of the Montana Constitution. ¶44 My interpretation would not necessarily en title the Gazette to attorney fees as I agree with the Court that an award of attorney fees purs uant to § 2-3-221, MCA, is discretionary. I also agree with the Court that the Dist rict Court did not abuse its discretion in denying the Gazette’s request for fees – but just barely. The Teachers at issue had a reasonable expectation of priv acy during the pendency of the School District’s investigation of the allegations. Mere allega tions should not automatically trigger public disclosure. At the same time that the School District was withholding the requested documents from the Gazette, however, it was providing the documents to its outside investigator. Its outside investigat or, in turn, issued a report revealing the contents of the documents to the public at a school board meeting. The public’s right to23 know clearly outweighed the Te achers’ expectation of privac y once the School District’s outside investigator had concl uded her investigation and had disclosed the results of her investigation to the public. ¶45 The School District immediately should have provided the documents to the Gazette once its outside investigator disclo sed the contents of the documents to the public. Unlike the District Court, I would ha ve awarded attorney fees to the Gazette for any amounts incurred beyond that point. My mere disagreement, however, fails to overcome our longstanding and ineluctable rule that a district court abuses its discretion when it "acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." Campbell v. Canty , 1998 MT 278, ¶ 35, 291 Mont. 398, ¶ 35, 969 P.2d 268, ¶ 35. Thus, I reluctantly concur wi th the Court’s conclusion that the District Court did not abuse its disc retion in denying the Gazette’s request for attorney fees.
/S/ BRIAN MORRIS

Justice John Warner joins in the foregoing concurrence.

/S/ JOHN WARNER24 Justice James C. Nelson concurs and dissents. ¶46 I concur in the result of the Court’s deci sion on Issue One; I do not agree with all that is said therein. I dissent from the Court’s decision on Issue Two. ¶47 The District Court, correctly in my view, determined that the two school teachers, both occupying positions of public trust, had no reasonable expectation of privacy in alleged sexual misconduct that took place on the school campus in a common, unlocked area and that such conduct substantially comp romised their ability to perform their jobs. The court concluded, appropri ately, that the public’s ri ght to know outweighed any privacy interest claimed by the teachers. Th at should have been equally apparent—from the outset—to the School District. ¶48 Here, a student allegedly walked into an unlocked room between the locker rooms at the high school and encountered one teach er on top of the other with one of the teacher’s bare buttocks showing. For the teac hers involved and the School District to even entertain the idea that the teachers retained a subjec tive privacy inte rest in such conduct that society would cons ider reasonable is patently ridiculous. Indeed, not one case or authority is cited for the argument that such conduct by public school teachers is protected by the right of individual privacy. And, worse, for the teachers to argue on appeal that this sort of conduct is appare ntly capable of repetition, but might escape review, is truly mind-blowing. One is left to wonder just how ofte n this sort of thing
occurs on campus.25 ¶49 In my view, the Gazette was entitled to a ll documents and records pertaining to the investigation of this matter and any subse quent discipline impose d on the teachers as soon as the newspaper requested the documen ts and records from the School District. I reject the idea that the School District had to engage in litigation to balance a clear legal duty to disclose documents whic h were presumptively open to the public under Article II, Section 9 of the Montana Constitu tion, with a claim to a right of privacy that, under this Court’s jurisprudence, simply di d not exist from the beginning. See Great Falls Tribune v. Sheriff, 238 Mont. 103, 107, 775 P.2d 1267, 1269 (1989) (public employees in positions of trust have limited expectations of privacy in investigations into their conduct); Citizens to Recall Mayor v. Whitlock , 255 Mont. 517, 523, 844 P.2d 74, 78 (1992) (mayor has no privacy interest that society is w illing to accept as reasonable where allegations involve his se xually harassing public employees); Bozeman Daily Chronicle v. Police Dept., 260 Mont. 218, 226-27, 859 P.2d 435, 440 (1993) (off-duty police officer has no priv acy interest in investigative mate rials linking him to the rape of a cadet at the law enforcement academy becau se he occupied a pos ition of public trust and his alleged misconduct went direc tly to his breach of that duty); Svaldi v. AnacondaDeer Lodge County, 2005 MT 17, ¶ 31, 32 5 Mont. 365, ¶ 31, 106 P. 3d 548, ¶ 31 (public school teachers entrusted with the care and instruction of childre n occupy a position of public trust); Jefferson County v. Montana Standard, 2003 MT 304, ¶ 17 , 318 Mont. 173, ¶ 17, 79 P.3d 805, ¶ 17 (co unty commissioner had no reasona ble expectation of privacy26 precluding disclosure to newspa per of information relating to her ability to perform her duties). ¶50 When a public agen cy such as the School District— see Bryan v. District, 2002 MT 264, ¶ 35, 312 Mont . 257, ¶ 35, 60 P. 3d 381, ¶ 35—knows or with even minimal legal research should know that documents sought are public documents, then its duty is to promptly and fully disclose those when requested, and not to engage in litigation or the “let’s-see-just-how-long-we-can-drag-this-o ut” approach that seems to increasingly characterize right to know cases. See Havre Daily News, LLC v. City of Havre , 2006 MT 215, 333 Mont. 3 31, 142 P.3d 864; Yellowstone County v. Billings Gazette, 2006 MT 218, 333 Mont. 390, 143 P.3d 135. ¶51 For these reasons, the Court’s decision on th e attorney fees issue is indefensible. The School District needlessly delayed the resolution of this matter by subjecting the Gazette to protracted litigation that was u nnecessary. The School District gave the documents requested by the Ga zette to an outside inves tigator who issued a report revealing the contents of th e documents to the public during the pendency of these proceedings, without a court or der and prior to the District Court’s decision requiring disclosure to the Gazette. The School District forced the Gazette to litigate and expend attorney fees to obtain documents that it voluntarily gave to an investigator who, in turn, released the contents of the documents to the public. The Gazette’s entirely proper and legal request for investigative and disciplin ary documents was met by the School District, not with disclosure, but with a lawsuit—and then it unreas onably delayed providing the27 documents to the trial court for in camera inspection. Moreover, important investigative documents were withheld—even from the Dist rict Court—for months. I cannot join either the District Court or this Court in characterizing the Sch ool District as just trying to balance competing right-to-know and priv acy interests. Indeed, I question the bona fides of the School District in this whole matter. ¶52 The Gazette was required to litigate its en titlement to the docu ments at issue in order to uphold the public’s ri ght to know under Article II, S ection 9; the Gazette was the prevailing party; it is entitle d to its attorney fees. ¶53 I made this same argument in Havre Daily News and in Yellowstone County

— obviously to no avail. Havre Daily News , ¶¶ 49-86 (Nelson, J., concurring and dissenting); Yellowstone County , ¶¶ 33-52 (Nelson, J., concu rring). Even if the Gazette was not a prevailing “plaintiff” in this matte r, it was entitled to attorn ey fees under § 27- 8-313, MCA, and our decisions in Trustees of Indiana University v. Buxbaum , 2003 MT 97, 315 Mont. 210, 69 P.3d 663, and Mountain West v. Brewer, 2003 MT 98, 315 Mont. 231, 69 P.3d 652. Moreover, I would adopt the seven factors suggested by the Gazette. These factors should be ta ken into consideration in ruling on a fee request. Yellowstone County , ¶¶ 34-35 (Nelson J., concurring). And, I would hold that the District Court abused its discretion in not awarding the Ga zette its attorney fees in this case. ¶54 Unfortunately, the mischief in the Court’s decision is not only that it frustrates the constitutional presumption that all documents of every kind in the hands of public officials are amenab le to inspection ( Great Falls Trib. v. Mo nt. Public Serv. Com., 200328 MT 359, ¶ 54, 319 Mont. 38, ¶ 54, 82 P.3d 876, ¶ 54), and th at it stands on it’s head the constitutional requirement that, even if—unlik e here—the governmental entity is faced with legitimate privacy concerns, the righ t to know still trumps individual privacy interests unless the latter clearly outweighs the former (Mon t. Const. art. V, § 9; Yellowstone County , ¶¶ 40-42 (Nelson, J., concurri ng)); but also, and worse, it encourages governmental entities to continue to play hide-the-ball when a newspaper requests public documents to which the medi a is constitutionally entitled. Indeed, our refusal to require the award of attorney fees to the newspape r in such cases rewards such intransigence. I continue to reject that approach. ¶55 I concur in the result of Issue One; I dissent from Issue Two.

/S/ JAMES C. NELSON
Justice Patricia O. Cotter join s in the concurrence and dissent of Justice James C. Nelson.

/S/ PATRICIA COTTER